NOTE: At the time of writing (June 2011) the MHA is under review. It is anticipated that new Mental Health legislation will be introduced in 2012, to take effect in 2013. This will make considerable changes to the existing law, and it is important to speak with a lawyer to get advice about how changes may affect you (see also: Chapter 16*2 Advocacy).
The Mental Health Act 1986 (Vic) ("MHA") provides the legal framework for the care, treatment and protection of people with a mental illness, , including those under 18, who do not or cannot consent to that care, treatment or protection. It has also been extended to facilitate the provision of treatment and care to people with a mental disorder (s.4).
The MHA defines mental disorder as including mental illness (see: "What is psychiatric disability?", below), but does not otherwise define "mental disorder".
The objects of the MHA are to ensure that people with a "mental disorder are given the best possible care and treatment appropriate to their needs in the least possible restrictive environment and least possible intrusive manner consistent with the effective giving of that care and treatment". If possible, treatment should be provided in the community, near the person's home (or a relative or friend's home); treatment and care should be designed to assist people to live, work and participate in the community wherever possible.
A range of international human rights instruments set out the rights of people with disabilities, the most recent being the United Nations Convention on the Rights of Persons with Disabilities (“CRPD”) , which was adopted by the General Assembly in 2006 and signed by Australia in 2007. Australia ratified the Convention on 17 July 2008. The United Nations Principles for the Protection of Persons with Mental Illness and the Improvement of Mental Health Care (1991) deals specifically with the rights of people with psychiatric disability. Some of these are outdated in light of the CRPD. Although these international human rights instruments are not fully incorporated into Australian domestic law, they can be used to interpret legislation, specifically under the Charter of Human Rights and Responsibilities Act 2006 (Vic) ("the Charter").At the time of writing (30 June 2010) the MHA is under review. It is anticipated that new legislation will be introduced later in 2010. It is important to speak with a lawyer to get advice about how changes may affect you (see also: Chapter 16*2 Advocacy).
The Charter came into full force on 1 January 2008. The Charter requires public authorities to give proper consideration to and act consistently with human rights. It also requires Courts and Tribunals to interpret and apply legislation in accordance with the Charter. All public mental health services, their staff, the Mental Health Review Board (MHRB) and all other Victorian Government departments and their employees are public authorities. Private doctors acting under the MHA may also be public authorities.
Charter rights that are relevant to people receiving psychiatric treatment are:
- recognition and equality before the law (s.8);
- the right to life (s.9);
- the right to protection from cruel, inhuman or degrading treatment or punishment (s.10(b));
- the right not to be subjected to medical or scientific experimentation or treatment without full, free and informed consent (s.10(c));
- freedom of movement (s.12);
- the right to privacy and protection of reputation (s.13);
- freedom of thought, conscience, religion and belief (s.14);
- the right to liberty and security of person (s.21);
- the right to humane treatment when deprived of liberty (s.22); and
- the right to a fair hearing (s.24).
The human rights set out in the Charter are not absolute rights but are to be balanced against each other and against other competing public interests (s.7 Charter). The Charter may have a potentially far reaching effect in the way that public authorities exercise their powers under the MHA and the way that the MHA is interpreted by courts and tribunals. New avenues of legal redress may be available to people whose human rights have been breached. However, see: Chapter 17 Discrimination, for discussion of remedies available under the Charter.
Thetest case Kracke v Mental Health Review Board [2009] VCAT 646 (the Krackecase) sets out many important principles regarding interpretation and application of the Charter. On this issue of interpretation, the Kracke case needs to be read in light of the more recent decision of R v Momcilovic [2010] VSCA 50 (17 March 2010).
Further detailed advice can also be obtained from the Mental Health Legal Centre or the Human Rights Law Centre. For contact details of legal centres and agencies noted in this chapter, see the listing at the end of Chapter 16.1 Disability Overview. See also: Chapter 17 Discrimination.
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INTRODUCTION :: Last updated: Thu Jul 1st 2010